Kuo Ping v. Jeffrey Raleigh ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2739
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Kuo Ping, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Jeffrey S. Raleigh; Joseph M. Brooks; * District of Minnesota
Gary Gasele; Angie Buege; Patrick R. *
Kine; Joseph P. Van Kampen; Ed * [UNPUBLISHED]
Crosley, *
*
Appellees. *
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Submitted: October 5, 1999
Filed: January 24, 2000
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Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
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PER CURIAM.
Kuo Ping, a Federal Witness Security Program (WITSEC) prisoner housed at
Sandstone Federal Correctional Institution in Minnesota, appeals the final judgment
entered in the District Court1 for the District of Minnesota, granting summary judgment
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Franklin L.
in favor of defendants in his Bivens2 action. For reversal, Ping argues the district court
erred in concluding (1) defendants had a legitimate, content-neutral reason for banning
play-by-mail games; (2) his claim relating to censorship of a magazine, The Paper
Mayhem, was moot; and (3) defendants’ method of withholding his mail did not deny
him due process. For the reasons discussed below, we affirm the judgment of the
district court.
Upon de novo review, see Johnson v. Outboard Marine Corp., 172 F.3d 531,
535 (8th Cir. 1999), we conclude summary judgment was proper. We agree with the
district court that the prison’s ban on play-by-mail games--which have the potential to
allow inmates to communicate in code with outsiders--is reasonably related to
legitimate penological interests, namely, the security of WITSEC inmates’ locations
and identities. See Turner v. Safley, 482 U.S. 78, 89-91 (1987). We further agree that
rejection of Ping’s money order form to purchase a play-by-mail game rule book did
not violate his First Amendment rights, because the prison official who rejected it
reasonably believed--based on what Ping told him--the rule book could be used to
construct the banned games.
As to The Paper Mayhem issue, Ping has not rebutted defendants’ evidence that
the publication was rejected, mistakenly, only once; thus, even crediting his
unsupported argument on appeal that he still has not received the publication and that
the matter is therefore not moot, the summary judgment record establishes that
defendants do not have a policy of censoring The Paper Mayhem. Cf. Gardner v.
Howard, 109 F.3d 427, 431 (8th Cir. 1997) (isolated incident of inadvertent opening
of inmate’s incoming legal mail, without evidence of improper motive or resulting
Noel, Chief United States Magistrate Judge for the District of Minnesota.
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
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interference with inmate’s right to counsel or access to courts, does not rise to level of
constitutional violation).
Finally, we conclude defendants afforded Ping minimal procedural safeguards
when they withheld his game-related mail. Ping received verbal and written notice
from defendants that play-by-mail games would be banned, and he was able to contest
the ban by filing numerous grievances and appeals to parties not involved in the
censorship decision. See Procunier v. Martinez, 416 U.S. 396, 417-19 (1974)
(procedural safeguards include notice, opportunity to be heard, and opportunity for
appeal to prison official who was not involved in original censorship decision),
overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).3
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
3
Because Ping’s claims fail on their merits, we find it unnecessary to address his
argument that certain defendants, whom he had sued in their official capacities, are not
entitled to immunity from his request for injunctive relief.
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